Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Lion Pty Ltd Summary

[2022] FWC 1025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Lion Pty Ltd

(B2022/372)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 MAY 2022

Application to extend the 30 day period in relation to B2022/90

On 29 April 2022, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR738659 made on 23 February 2022. The Order applies to certain employees of Lion Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 6 April 2022. Pursuant to s. 459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 5 May 2022.

On 3 May 2022, the Respondent advised the Commission via email that it does not oppose the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 5 May 2022, the extension period will operate from 5 May 2022.

An order has been separately issued in PR741215.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to extend the 30 day period for protected action under the Fair Work Act 2009. The application was in relation to employees of Lion Pty Ltd, for whom a protected action ballot order had been issued on 23 February 2022. The ballot result was declared on 6 April 2022, meaning that the 30 day period for protected action would expire on 5 May 2022. The union sought an extension of this period, and the employer did not oppose the application.

The legal issue before the Commission was whether the union had satisfied the requirements of s. 459 of the Act to extend the 30 day period for protected action. The union had to demonstrate that each of the relevant requirements had been met, and that an extension was appropriate. The Commission noted that the period had not been previously extended, and that the employer did not oppose the application.

In determining the matter, the Commission considered the documentation filed by the union, and found that the union had satisfied the requirements of s. 459 of the Act. The Commission was satisfied that an extension was appropriate, and determined that the 30 day extension period would operate from 5 May 2022. An order was separately issued in PR741215.

This decision confirms that the Fair Work Commission has the power to extend the 30 day period for protected action under the Fair Work Act 2009, and that the union must satisfy certain requirements to do so. The decision also highlights the importance of employers and unions working together to resolve disputes and avoid industrial action where possible.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Lion Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established